JOHNSON v. MISS. POWER CO

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Docket Number

No. 34221.

Attorney(S)

Eaton Eaton, of Gulfport, and Wilbourn, Miller Wilbourn, of Meridian, for appellee on plea in bar of appeal. It is expressly provided in Section 21, Code 1930, of Mississippi: "The time for presenting such petition for an appeal shall be considered the time of taking the appeal, if bond be then given as required." While the petition for appeal was filed in the lower court October 13, 1939, the affidavit of the clerk attached to this brief and the bond itself, shown in the transcript immediately after page 254, clearly disclose that no bond for any appeal, as required by law, was actually filed in the lower court until the 21st day of March, 1940, more than six months after the rendition of the judgment in the lower court. Under Section 26 of the Code of 1930 of Mississippi, petition for an appeal is not necessary to the validity thereof. The controlling fact as to whether or not appeal has been taken so as to stop the running of Statute of Limitations, is the giving, in the lower court, of the bond as required by law. Lbr. Co. v. Stevenson, 42 So. 796, 89 Miss. 678; Colanthe v. Downs, 98 Miss. 740, 53 So. 417; Miller v. Phipps, 152 Miss. 437, 119 So. 170; Bank v. Cole, 106 Miss. 496, 64 So. 214; Farrish v. Davis, 124 Miss. 711, 86 So. 713. In the case of Howell v. Miller, 118 So. 178, 151 Miss. 372, the record on appeal did not disclose that any appeal bond whatever had been given, but did disclose that the costs of the transcript in the lower court had been paid by the appellants; that $20 had been deposited with the clerk of the Supreme Court. It was held that the giving of a bond in such cases in the sum of $100, as required in the concluding portion of Section 28, Code 1930 of Mississippi, was a necessary condition to the taking of an appeal, and it was dismissed. The case does not appear to have involved the question as to the statute of limitations. It is conclusive, however, that the filing of the $100 appeal bond in the court below is necessary. Applying all the principles of the foregoing cases and statutes to the situation here before the court, we respectfully submit that the appeal is barred under the terms of Section 2323, Code 1930 of Mississippi, by reason of the failure of appellant to file in the lower court the appeal bond required by the statute within six months from the rendition of the judgment in the lower court; and that it should now be dismissed. Gex Gex and Evelyn Hunt Conner, all of Bay St. Louis, for appellant on plea in bar of appeal. Appellee, as we see it, has misconceived the law as to what constitutes the rendition of a final judgment; and for that reason the decisions cited in their brief are inapplicable here. As shown by the affidavit of the clerk of the circuit court of Hancock County, attached to appellant's replication to the plea in bar, the term at which the case was tried in the lower court ended on September 22, 1939; immediately upon adjournment the stenographer was given notice to transcribe his notes for the purpose of taking an appeal therein, and the appeal was finally perfected on March 21, 1940, within the six months provided by statute for the taking of appeals. Code of 1930, Secs. 13, 2323, 3361. Appeals may be taken to this court from an adverse ruling of the circuit court at any date within six months next after the date upon which the judgment rendered by the circuit court becomes final. State ex rel. Rice, Atty.-General., v. Large, 157 So. 694; Moore v. Montgomery Ward Co., 156 So. 875. From the foregoing cases, it is apparent that so long as the time had not elapsed in which a motion for a new trial might be made by any of the parties the judgment rendered by the court was not final and no appeal could have been taken until the 22nd day of September, 1939. Therefore, the appeal was perfected on the 21st day of March, 1940. It was taken within the six months provided by statute and regardless of the fact that notice of the appeal was not served on appellee until April 9th, the perfecting of the appeal by payment of costs and filing of the bond stopped the running of the statute. Adams Lbr. Co. v. Stevenson, 89 Miss. 687, 42 So. 796; Farrish v. Davis, 124 Miss. 711, 86 So. 713; Turner v. Weaver, 126 Miss. 496, 89 So. 153; Love v. Mayor and Board of Aldermen of Yazoo City, 148 So. 382. We respectfully submit that the plea in bar should be overruled, and the case should be submitted to the court on its merits.

Judges

Smith, C.J., delivered the opinion of the court.

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Smart Summary

Factual and Procedural Background

The appellant sued Beningo and the Mississippi Power Company for personal injury. A jury returned a verdict in favor of the Mississippi Power Company but against Beningo. A judgment awarding damages to the appellant against Beningo and dismissing the action as to the Mississippi Power Company was entered on the minutes of the circuit court on September 8, 1939. The court remained in session until it adjourned on September 22, 1939. The appeal bond was filed and approved on March 21, 1940 — more than six months after the entry of the judgment (September 8) but less than six months after the adjournment of the court (September 22). The appellee filed a plea in bar asserting the appeal was untimely; the appellant responded that the judgment was not final for purposes of the six‑month appeal statute until the end of the court's term (September 22), and therefore the March 21 filing was within six months.

Legal Issues Presented

When is a judgment "rendered" for purposes of the Mississippi six‑month appeal statute (Code 1930, § 2323): at the pronouncement/entry on the minutes or at the end of the term of court?
Was the appeal timely where the appeal bond was filed and approved on March 21, 1940, given the judgment was entered on the minutes on September 8, 1939, and the court adjourned September 22, 1939?

Arguments of the Parties

Appellee's Arguments

The controlling fact for stopping the running of the statute of limitations is the filing/giving of the appeal bond in the lower court; the appeal is "taken" only when the required bond is filed (citing Code provisions and decisions).
Although a petition for appeal was filed earlier, no bond as required by law was actually filed in the lower court until March 21, 1940 — more than six months after the rendition of the judgment — so the appeal is barred under Code 1930, § 2323.
Cited precedents (e.g., Lbr. Co. v. Stevenson; Colanthe v. Downs; Miller v. Phipps; Bank v. Cole; Farrish v. Davis) and Howell v. Miller to support that filing the required appeal bond in the court below is a necessary condition to the taking of an appeal and that the late filing defeats the appeal.

Appellant's Arguments

The appellee misconceives what constitutes rendition of a final judgment; a judgment is not final for appeal purposes until the end of the term at which it was rendered, so the six‑month period runs from the end of the term.
The lower court term ended on September 22, 1939; the stenographer was directed to transcribe notes immediately upon adjournment; the appeal was perfected on March 21, 1940, which the appellant contends is within six months after the judgment became final.
Cited statutes (Code 1930, §§ 13, 2323, 3361) and controlling decisions (e.g., State ex rel. Rice v. Large; Moore v. Montgomery Ward Co.; Adams Lbr. Co. v. Stevenson; Farrish v. Davis; Turner v. Weaver; Love v. Mayor and Board of Aldermen of Yazoo City) to support the proposition that the time to appeal runs from the date the judgment becomes final (end of term, where applicable).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Lbr. Co. v. Stevenson, 42 So. 796, 89 Miss. 678	Cited by appellee to support the proposition about requirements for taking an appeal and timely filing.	Appeared in appellee's brief; relied on by appellee as authority that timely filing of bond is controlling.
Colanthe v. Downs, 98 Miss. 740, 53 So. 417	Cited by appellee in support of appeal filing principles.	Appeared in appellee's brief; treated as part of appellee's authorities asserting the necessity of timely filing of bond.
Miller v. Phipps, 152 Miss. 437, 119 So. 170	Cited by appellee regarding appeal procedure requirements.	Appeared in appellee's brief as supporting authority for appellee's position.
Bank v. Cole, 106 Miss. 496, 64 So. 214	Cited by appellee on appeal procedure and timing.	Included in appellee's list of precedents; relied on by appellee's counsel.
Farrish v. Davis, 124 Miss. 711, 86 So. 713	Cited by both sides in discussion of appeal timing and finality.	Referenced by parties; the court included it among authorities concerning finality and timing.
Howell v. Miller, 118 So. 178, 151 Miss. 372	Cited by appellee as authority that filing the $100 appeal bond in the court below is a necessary condition to the taking of an appeal.	Not adopted as a controlling new rule by the court; it was discussed in appellee's brief and noted as supportive of appellee's position.
State ex rel. Rice, Atty.-General., v. Large, 157 So. 694	Cited by appellant in support of when an appeal may be taken relative to finality.	Included among authorities cited by appellant in arguing that the time to appeal runs from the date the judgment becomes final.
Moore v. Montgomery Ward Co., 156 So. 875	Cited by appellant on timing of appeals; also cited in opinion regarding effect of post‑term motions on finality.	Used by the court among authorities discussing suspension of finality by motions made before end of term.
Adams Lbr. Co. v. Stevenson, 89 Miss. 687, 42 So. 796	Cited by appellant as authority on appeal timing.	Appeared in appellant's citations; treated as supporting appellant's position that the finality rule relates to the date judgment becomes final.
Turner v. Weaver, 126 Miss. 496, 89 So. 153	Cited by appellant in support of finality/timing principles.	Included in appellant's list of authorities; not separately analyzed by the court beyond citation.
Love v. Mayor and Board of Aldermen of Yazoo City, 148 So. 382	Cited by appellant concerning appeal timing from judgments.	Listed among appellant's authorities; court did not rely on it as dispositive.
Creswell v. Creswell, 164 Miss. 871, 140 So. 521, 522, 141 So. 41	Supports rule that date of rendition of a judgment at law is the pronouncement thereof by the court at the conclusion of the trial.	Adopted by the court to establish that rendition date equals pronouncement and entry on the minutes.
Clark v. Duke, 59 Miss. 575	Authority supporting the same rule on date of rendition.	Included by the court among authorities for the pronouncement/entry rule.
Simpson v. Boykin, 118 Miss. 701, 79 So. 852	Authority cited for the pronouncement/entry rule regarding rendition of judgment.	Used by the court to support the rule that rendition date is the date of pronouncement and entry on minutes.
Rayl v. Thurman, 156 Miss. 1, 123 So. 853, 124 So. 432	Cited for the proposition that the limitation period begins the day after the judgment is rendered.	Relied upon by the court to determine that the six‑month limitation began the day after September 8, 1939.
Johnson v. Edde, 58 Miss. 664	Cited for the proposition that the date of rendition is determined by entry on the minutes (Sec. 750 citation).	Used by the court to support the entry-on-minutes rule for the date of rendition.
Humphreys v. Stafford, 71 Miss. 135, 13 So. 865	Cited for the principle that a judgment which adjudicates everything material is final.	Included by the court among authorities defining when a judgment is final for appeal purposes.
Gulf S.I.R. Co. v. Williams, 109 Miss. 549, 68 So. 776	Cited regarding finality of judgments that adjudicate all material matters.	Used by the court as authority for the finality definition applied to judgments.
Dunagin v. First National Bank, 118 Miss. 809, 80 So. 276	Cited on finality of judgments.	Included among cases supporting the court's finality analysis.
Bank of Courtland v. Long Creek Drainage Dist., 133 Miss. 531, 97 So. 881	Authority cited on when a judgment is final.	Referenced by the court as part of the body of authorities defining final judgments.
Kingman Co. v. Western Mfg. Co., 170 U.S. 675, 18 S.Ct. 786, 42 L.Ed. 1192	Cited for the rule that if a motion to set aside judgment is filed before end of term, finality is suspended until disposition of the motion.	Relied on by the court to state the qualification that pending pre‑adjournment motions suspend finality.
Mayflower Mills v. Breeland, 168 Miss. 207, 149 So. 787	Cited on suspension of finality by motions filed before the end of the term.	Used by the court as supporting authority for the suspension rule.
O'Bannon v. Greenville, etc., Co., 159 Miss. 68, 132 So. 87	Cited regarding suspension of finality by motions made before adjournment.	Included among authorities supporting the court's statement of that qualification.
Good v. Board of Supervisors, 140 Va. 399, 125 S.E. 321	Cited to show that subjecting a judgment to control during the term does not prevent it from being final for appeal.	Used by the court to support the proposition that a judgment may be final despite court control during the term.
Buford v. North Roanoke Land Co., 94 Va. 616, 27 S.E. 509	Cited to the same effect as Good v. Board of Supervisors.	Included to support the court's view that court control during the term does not necessarily prevent finality.
Southern R. Co. v. Clift, 260 U.S. 316, 43 S.Ct. 126, 67 L.Ed. 283	Cited for the proposition that being subject to court control during the term does not prevent a judgment from being final for appeal.	Relied upon by the court as persuasive authority for the same proposition.

Court's Reasoning and Analysis

The court began by identifying the statutory standard: Code 1930, § 2323 requires appeals to the Supreme Court to be taken within six months "next after the rendition of the judgment or decree complained of." The court observed that, where a bond is required, an appeal is not "taken" until the bond is filed and approved.

The pivotal legal question was the date on which the judgment was "rendered" so as to trigger the six‑month limitation. The court acknowledged three approaches used in other jurisdictions (presumption of rendition on first day of term, last day, or actual day of pronouncement) and expressly aligned Mississippi with the third approach. Relying on Creswell v. Creswell and other Mississippi authorities, the court held that the date of rendition of a judgment at law is the pronouncement by the court at the conclusion of the trial, a date determined by the entry of the judgment on the minutes (citing Sec. 750, Code 1930, and Johnson v. Edde).

The court then addressed the appellant's contention that a judgment is not final for appeal purposes until the end of the term (citing Sections 13 and 3361). The court agreed that the court retains control over its judgments during the term, but explained that a judgment which adjudicates everything material and will give all relief when executed is final. The court recognized a qualification: if a motion to set aside the judgment is filed before the end of the term, finality is suspended until disposition of that motion. The court cited Kingman Co. v. Western Mfg. Co. and other authorities for that suspension rule.

Applying those principles to the facts, the court found that no motion to set aside the judgment was filed before the adjournment; therefore the judgment was final when entered on the minutes (September 8, 1939). The six‑month limitation therefore began the day after rendition (September 9, 1939). Because the appeal bond was not filed until March 21, 1940 — more than six months after the rendition date — the appeal was untimely under § 2323.

Holding and Implications

APPEAL DISMISSED.

Direct effect: The appeal was dismissed for being untimely because the required appeal bond was filed and approved more than six months after the judgment was rendered (the court treated rendition as the pronouncement/entry on the minutes, September 8, 1939, and the six‑month period began the following day).

Broader implication: The court applied and reaffirmed existing Mississippi principles that (1) for purposes of the six‑month appeal statute (Code 1930, § 2323) an appeal is "taken" only upon filing of the required bond, (2) the date of rendition is the date of pronouncement and entry on the minutes, and (3) a judgment is final for appeal purposes unless a timely motion filed before adjournment suspends that finality. The opinion enforces those statutory and decisional rules rather than announcing a new rule of law.

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JOHNSON v. MISSISSIPPI POWER CO.

1. APPEAL AND ERROR.

Under statute providing that appeals to Supreme Court shall be taken within six months after rendition of judgment or decree, an appeal is "taken" when but not until a bond therefor is filed where such bond is required (Code 1930, sec. 2323).

2. APPEAL AND ERROR.

In determining time for taking appeal, date of rendition of judgment at law is the pronouncement thereof by court at conclusion of trial and such date is determined by entry of judgment on minutes of the court (Code 1930, secs. 750, 2323).

3. APPEAL AND ERROR.

The court has full control over its judgments during whole of its term at which they are rendered, but a judgment which adjudicates everything material to determination of cause and which when executed according to its terms will give all relief which could be afforded, is a "final judgment" for purpose of appeal (Code 1930, secs. 13, 750, 2323, 3361).

4. APPEAL AND ERROR.

If a motion for setting aside of judgment is filed before end of term of court at which it was rendered, finality of judgment is thereby suspended and limitation on time for an appeal begins when but not until motion is disposed of (Code 1930, secs. 13, 750, 2323, 3361).

5. APPEAL AND ERROR.

That a judgment may be subject to control of court during term at which it is rendered does not prevent it from being "final" for purpose of appeal (Code 1930, secs. 13, 750, 2323, 3361).

6. APPEAL AND ERROR.

The statute providing that appeals to the Supreme Court shall be taken within six months after rendition of judgment or decree except in case of persons under disability of infancy or unsoundness of mind is unambiguous and must be enforced as written (Code 1930, sec. 2323).

7. APPEAL AND ERROR.

Where appeal bond was filed and approved more than six months after entry of judgment but less than six months after adjournment of court which rendered judgment, appeal was dismissed, since six months' limitation on time within which to appeal from the judgment began on day after it was rendered (Code 1930, secs. 13, 750, 2323, 3361).

Smith, C.J., delivered the opinion of the court.

The appellant sued Beningo and the Mississippi Power Company for a personal injury. The jury returned a verdict for the Power Company, but against Beningo; and a judgment thereon awarding the appellant damages against Beningo and dismissing his action as to the Mississippi Power Company was entered on the minutes of the court on the 8th day of September, 1939. The court remained in session until, and adjourned on, the 22nd day of September. The appeal bond was filed and approved on March 21, 1940, more than six months after the entry of the judgment but less than six months after the adjournment of the court.

Section 2323, Code 1930, provides: "Appeals to the Supreme Court shall be taken within six months next after the rendition of the judgment or decree complained of, and not after, saving to persons under a disability of infancy or unsoundness of mind the like period after the disability shall have been removed." An appeal within the meaning of this statute is taken when, but not until, a bond therefor is filed, where such a bond is required, as is the case here.

The appellee, by a plea in bar of the appeal, says that this bond was filed more than six months after the judgment appealed from was rendered. The question presented then is: When was the judgment rendered? In some jurisdictions all judgments are presumed to have been rendered on the first day of the term of the court at which they were rendered; in others, on the last day thereof unless the contrary appears; in still others, on the day on which they were actually pronounced by the court. 34 C.J. 70; 15 R.C.L. 611 et seq. This court is aligned with the third of these classes; for with us "the date of the rendition of a judgment at law is the pronouncement thereof by the court at the conclusion of the trial." Creswell v. Creswell, 164 Miss. 871, 140 So. 521, 522, 141 So. 41; Clark v. Duke, 59 Miss. 575; Simpson v. Boykin, 118 Miss. 701, 79 So. 852; Rayl v. Thurman, 156 Miss. 1, 123 So. 853, 124 So. 432. This date is determined by the entry of the judgment on the minutes of the Court. Sec. 750, Code 1930; Johnson v. Edde, 58 Miss. 664.

But the appellant says that under Sections 13 and 3361, Code 1930, appeals to this Court lie only from final judgments, and that a judgment does not become final, at least for the purpose of an appeal, until the end of the term of the court at which it was rendered.

The court has full control over its judgments during the whole of the term at which they are rendered. Nevertheless a judgment "which adjudicates everything material to the determination of the cause, and which, when executed according to its terms, will give all the relief which could be (then) afforded is final." 33 C.J., p. 1061; Humphreys v. Stafford, 71 Miss. 135, 13 So. 865; Gulf S.I.R. Co. v. Williams, 109 Miss. 549, 68 So. 776; Dunagin v. First National Bank, 118 Miss. 809, 80 So. 276; Bank of Courtland v. Long Creek Drainage Dist., 133 Miss. 531, 97 So. 881.

One necessary qualification of this rule is, that, if a motion for the setting aside of a judgment is filed before the end of the term of the court at which it was rendered, the finality of the judgment is thereby suspended and the limitation on the time for an appeal begins when, but not until, the motion is disposed of. 4 C.J.S., Appeal and Error, Sections 106 and 441; 2 Am. Jur. App. Err., Sec. 25; Kingman Co. v. Western Mfg. Co., 170 U.S. 675, 18 S.Ct. 786, 42 L.Ed. 1192; Moore v. Montgomery Ward Co., 171 Miss. 420, 156 So. 875; Mayflower Mills v. Breeland, 168 Miss. 207, 149 So. 787; O'Bannon v. Greenville, etc., Co., 159 Miss. 68, 132 So. 87.

No such motion was here made; and the mere fact "that a judgment may be subject to the control of the court during the term at which it is rendered does not prevent it from being final and appealable." 4 C.J.S., Appeal and Error, Secs. 94 and 446; 2 Am. Jur. App. Err., Sec. 25; Good v. Board of Supervisors, 140 Va. 399, 125 S.E. 321; Buford v. North Roanoke Land Co., 94 Va. 616, 27 S.E. 509; Southern R. Co. v. Clift, 260 U.S. 316, 43 S.Ct. 126, 67 L.Ed. 283. We have been cited to no case construing a similar statute differently and none have come under our observation so doing, except probably from a jurisdiction where judgments are presumed to have been rendered on the last day of the term of the court. The statute is plain and unambiguous and must be enforced as written.

The six months' limitation on the time within which to appeal from this judgment began on September 9, 1939, the day after it was rendered. Rayl v. Thurman, 156 Miss. 1, 123 So. 853, 124 So. 432.

Appeal dismissed.